Justice Department says president can deny asylum to those who entered U.S. at wrong places

A group of migrants from Central America riding in the back of a truck on the outskirts of Huixtla, Mexico, wait to proceed on their journey north, on Oct. 24, 2018. President Donald Trump proclaimed on Nov. 9 that the illegal entry of immigrants across the southern border of the U.S. is detrimental to the national interest, triggering tough changes that will deny asylum to all migrants who do not enter through official border crossings. (Luis Antonio Rojas/The New York Times)

Photo: LUIS ANTONIO ROJAS / NYT

Federal law allows undocumented immigrants in the United States to apply for political asylum no matter where they entered the country. But government lawyers told a federal judge in San Francisco on Thursday that President Trump has the power to deny asylum to the thousands who crossed the southern border at the wrong places — anywhere besides the designated, overcrowded ports of entry.

The law “carefully distinguishes between an alien’s ability to apply for asylum and the executive’s authority to deny asylum,” Justice Department lawyers argued in defense of the proclamation Trump issued last Friday, in which he barred asylum for anyone crossing the U.S.-Mexico border without stopping at a port of entry. The president is seeking to “regain control of the border,” they said, and his new rules “aim to save lives by discouraging asylum-seekers from making dangerous, unlawful border crossings.”

Asylum allows immigrants to remain in the U.S. if they can show a “well-founded fear of persecution” in their homeland for reasons such as race, religion, political views, or, under recent rulings, sexual orientation. Hours after Trump delivered his proclamation, the American Civil Liberties Union sued on behalf of asylum support groups, saying the president was violating federal law.

One law, passed in 1980, specifies that any foreigner “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival) ... may apply for asylum.” The suit said the official ports of entry are jammed — asylum-seekers at San Ysidro in San Diego County have to wait four to six weeks in Tijuana, where they are prey to gangs.

The suit also said Trump had illegally put his order into effect Saturday rather than allowing at least 30 days for public comment. U.S. District Judge Jon Tigar has scheduled a hearing Monday on the ACLU’s request for a restraining order to halt enforcement of Trump’s decree nationwide.

In Thursday’s filing, the government’s first response to the lawsuit, Justice Department lawyers said the waiting period for public comment, usually required for new federal regulations, would be dangerous in this case, “encouraging a surge to enter the United States between ports of entry before the rule took effect.”

In an apparent reference to the “caravan” of migrants heading northward from Central America, the filing said there were “thousands of aliens traveling in groups ... expected to attempt entry at the southern border in the coming weeks.”

“The executive branch has identified a crisis at the southern border — of thousands of aliens entering our country in a dangerous manner in violation of our criminal law and overburdening or misusing the asylum process,” government lawyers said.

They said Trump is entitled to limit asylum eligibility to promote safety, by steering asylum-seekers to official entry stations, and to carry out U.S. foreign policy by negotiating with Mexico to provide a safe haven for the migrants. The Mexican government has allowed members of the caravan to apply for asylum, but most have chosen to continue toward the U.S.

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.